2008 International Law Update, Volume 14, Number 5 (May)

2008 International Law Update, Volume 14, Number 5 (May)

Legal Analyses published by Mike Meier, Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com. 

CONSULAR RELATIONS

Second Circuit rules that Article 36 of Vienna Convention does not confer judicially enforceable right on foreign arrestee to be informed that he could obtain assistance from his consular officials which he could enforce through litigation under Alien Tort Claims Act or Convention itself

Ricardo de los Santos (Plaintiff) was a citizen of the Dominican Republic whom New York authorities arrested in 1992 and charged with attempted robbery. He pled guilty and the judge sentenced him to six months’ in prison and five years’ probation.

Three years later, Plaintiff filed a million‑dollar suit pro se in a New York federal court under the Alien Tort Claims Act (ATCA), 28 U.S.C. Section 1350. He alleged that the local prosecutor and City Police had violated Article 36 of the Vienna Convention on Consular Relations [21 U.S.T. 77; T.I.A.S. 6820; 596 U.N.T.S 261; in force for U.S. Dec. 24, 1969] by failing to tell him that he could contact the Dominican consulate for assistance. The District Court dismissed Plaintiff’s suit sua sponte under Civil Rule 12(b)(6).

Plaintiff then obtained counsel, and appealed the dismissal. He contended that Convention Article 36 does confer an justiciable right to be told about the availability of consular notification; and that federal courts may enforce this right not only under ATCA, but also under the civil rights act (42 U.S.C. Section 1983) and directly under the Convention itself. The U.S. Court of Appeals for the Second Circuit, however, affirms.

The Court points to the split between the U.S. Courts of Appeals on these questions and to the fact that the Supreme Court has not yet authoritatively answered it. (Noteworthily, four of the nine current Justices have expressed their agreement with Plaintiff’s theory in Sanchez‑Llamas v. Oregon, 126 S. Ct. 2669, 2677‑78 (2006).

In the Head Money Cases, 112 U.S. 580 (1884), the Supreme Court declared that a treaty “is primarily a compact between independent nations.” Id. at 598. As such, “[i]t depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it.” Id.

The Head Money Court also acknowledged that treaties may also create individual rights “which partake of the nature of municipal [i.e., domestic] law, and which are capable of enforcement as between private parties in the courts of the country.” Id. Noting that the Supremacy Clause places international treaties on the same legal footing as federal law, the Court concluded that “[a] treaty, then, is a law of the land as an act of [C]ongress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined.” Id. at 598‑599.

“And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would a statute.” Id. at 599.

The Circuit Court then observes that it must resolve the key question as a matter of treaty interpretation. In a textual analysis of Article 36, the Court observes that the Convention refers to the detaining state’s obligations to, upon request, inform a foreign detainee’s consulate of the detention and allow the detainee to contact his consulate as “rights” about which the authorities must notify the detainee.

Nothing in the text indicates, however, that the detaining state’s obligation in Convention ¶ 1(b) to inform the foreign national “without delay of his rights under this sub‑paragraph,” is an individual right. The Convention makes no mention of whether and how individuals are to enforce the specified rights contained therein. The Court concludes that the rights Article 36 does confer are a means of implementing the treaty obligations as between the signatory States.

The context of the Convention supports this conclusion. The first clause of ¶ 1 of Article 36 begins with the following statement of purpose: “[w]ith a view to facilitating the exercise of consular functions relating to nationals of the sending State.” Furthermore, ¶ 5 of the Conventions’ preamble states that “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States.”

The motivating principles of the Convention are clearly those governing the relations of States inter se. It protects state‑level concerns for the “sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations.” In the Court’s view, these passages suggest that Convention rights belong to, and are enforceable by, the States‑parties to the Convention through their official representatives.

Moreover, the Optional Protocol to the Convention vests compulsory jurisdiction over disputes arising under the Convention in the International Court of Justice (ICJ) which handles disputes between nations. The Court points out that individuals can benefit from Convention rights other than by private actions for damages. It then suggests four examples: “First, states‑parties can safeguard the rights in the Convention (and protect their nationals) through ‘negotiations and reclamations.’ See Head Money Cases, supra at 598.

Second, the reciprocal nature of the Convention provides a natural incentive to receiving states to comply with its terms. For instance, in an action brought by the federal government, the U.S. can sue state and local governments to ensure compliance with the Convention. Third, the lack of any privately enforceable right to damages for a violation of Article 36(1)(b)(third) would not prevent a domestic court or magistrate from inquiring whether anyone has informed a foreign national before it that he or she may contact his consulate [at that point], thus satisfying the notice obligation. Finally, a detained alien could petition officials of a detaining authority, including where appropriate, the courts, to comply with the obligations set forth in Article 36.

The Court notes that the Constitution assigns the mechanisms for establishing and enforcing international treaties to the Executive and Legislative branches. There is, therefore, a strong presumption against the courts’ enforcing of international treaty obligations at an individual’s behest.

Moreover, the Court says, its precedents and those of the other Courts of Appeals and the Supreme Court strongly support the principle that, in the absence of express language to the contrary, treaties do not create privately enforceable rights for private individuals. The Court concludes by noting that “there are a number of ways in which the drafters of the Vienna Convention, had they intended to provide for an individual right to be informed about consular access and notification that is enforceable through a damages action, could have signaled their intentions to do so . . . That they chose not to signal any such intent counsels against our recognizing an individual right that can be vindicated in a damages action in this case.” [Slip op. 25‑26].

Next, the Court bolsters its conclusion by referring to the position of the Department s of State and Justice, which jointly submitted an amicus curiae brief on behalf of the U.S. in support of New York. Following Medellin v. Texas, 552 U.S. ______ (2008), the Court notes that it places “great weight” on the Executive’s interpretation of a treaty and finds Plaintiff’s opposing arguments unpersuasive.

The Court then addresses ICJ jurisprudence which suggests that the Vienna Convention does create privately enforceable rights. The Court first notes that “[i]n contrast to the ‘great weight’ we must accord the views of our Executive, the Supreme Court has instructed that we ‘should give respectful consideration to the interpretation of an international treaty rendered by an international court with jurisdiction to interpret such.’ Breard v. Greene, 523 U.S. 371, 375 (1998). We are not bound either to give that interpretation any particular weight when considering the text and context of a treaty, or to treat it as having any dispositive effect in the event of ambiguity.” [Slip op. 28‑29]

The Court is not persuaded by the ICJ’s assertion in Avena and Other Mexican Nationals (Mexico v United States of America) (Judgment) [31 March 2004] ICJ (available at http://www.icj‑cij.org) that “the individual rights. . . under ¶ 1(b) of Article 36 of the Vienna Convention are rights which are to be asserted, at any rate in the first place, within the domestic legal system of the United States” [Slip op. 29]. The ICJ offers no rationale to support its conclusion.

To determine the intentions of the drafters, the Court then considers the travaux preparatoires of the Convention. Finding that the travaux offer no clear guidance on the issue, the Court concludes that in any event, “scattered examples drawn from the travaux to support Plaintiff’s position would not defeat the deference ... we owe to the clear and consistent views of the United States.” [Slip op. 31].

The Court next considers whether an alleged violation of Article 36(1)(b)(third) gives rise to a claim pursuant to the ATCA for a breach of customary international law: “To form the basis of a ATCA suit, the alleged tort must be ‘defined with a specificity comparable to the features of the 18th‑century paradigms’ of torts in violation of the law of nations — violations of safe conducts, offenses against ambassadors, and piracy. Sosa v. Alvarez‑Machain, 542 U.S. 692, 725 (2004). These paradigmatic examples involve ‘offences . . . principally incident to whole states or nations and not [to] individuals seeking relief in court.’ Id. at 720. Plaintiff has pointed to no sources which evince support for the specific customary international law tort proposed here. ...” [Slip op. 31]

Citation: Mora v. People of the State of New York, 524 F.3d 183 (2d Cir. 2008).

EXTRADITION

On request for extradition to United States of English executive allegedly involved in international price fixing conspiracy in carbon industry, House of Lords decides that one count failed to meet test of double criminality and that three others do meet that test but need further investigation into possible prejudice from delay

The Appellant in the House of Lords is Mr. Ian Norris, a citizen of the United Kingdom. The Government of the United States (Respondent) seeks to extradite him to the U.S. to stand trial in a Pennsylvania federal court. On June 1, 2005, Evans DJ sent the case to the Home Secretary for his decision whether the U.K. should extradite Appellant and, on September 29, 2005, the Secretary ordered that he should. The Queen’s Bench upheld that order, subject to this appeal to the House.

For 29 years, Appellant worked in the carbon division of the Morgan Crucible group of companies; after four years as group CEO, he retired in 2002 on grounds of ill‑health. The group’s parent company is an English company, based in Windsor. The Morgan group had subsidiaries based in North Carolina and Pennsylvania.

In 1999 the Respondent began to investigate allegations of price‑fixing in the U.S. carbon industry. In due course, the two American subsidiaries paid substantial fines. The U.S. authorities granted immunity from prosecution to most of Morgan’s directors, officers and employees as part of a plea bargain but not to Appellant. In September 2004, a federal grand jury sitting in Pennsylvania returned the indictment on which it is now sought to extradite Appellant from the U.K.

This indictment contains four counts. The first count alleges that Appellant conspired with certain other European producers of carbon products to enter into a price‑fixing agreement or cartel in several countries, including the U.S. It alleged that, while the parties made the agreements outside the U.S. (e.g. in Europe, Mexico and Canada), it injured free competition in the U.S. market. The cartel allegedly operated from at least 1989 to 2000. The charge invoked 15 U.S.C. Section 1, familiarly known as the Sherman Act which criminalizes certain antitrust conspiracies.

This is a statutory offence of strict liability. It does not require proof of fraud, deception or dishonesty, and count 1 of the indictment contains no such allegation. Among the extradition papers served on Appellant was an affidavit of Lucy McClain, a prosecutor in the Anti‑Trust Division of the U.S. Department of Justice. She deposed that the conspirators such as Appellant “[i]n effect ... defrauded their customers by requiring that they pay higher prices than they might otherwise have paid had there been no conspiracy.” The U.S. indictment itself, however, did not contain this specific allegation.

The charges sheet prepared by the Crown Prosecution Service on behalf of the Respondent, transposed Count 1 of the U.S. indictment into the particulars of English criminal offences. The result was that Appellant allegedly conspired to “defraud buyers of carbon products by dishonestly entering into an agreement to fix, maintain and co‑ordinate the price for the supply of carbon products in the U.S.”

Counts 2, 3 and 4 of the U.S. indictment alleged (2) conspiracies to obstruct justice, (3) witness tampering and (4) causing a person to alter, destroy, mutilate or conceal an object with the intent to impair the object’s availability for use in an official proceeding, in violation of federal law. The English charges sheet transposed these U.S. crimes into a conspiracy “to pervert the course of public justice, namely, the process of a federal grand jury’s criminal investigation into price‑fixing in the carbon products industry.”

In resisting extradition on count 1, Appellant contends that taking part in a cartel, in the absence of aggravating conduct, was not, at the material time (1989‑2000), a criminal offence at common law or under any U.K. statute. Therefore, the conduct of which the U.S. accuses him would not have been criminally punishable in the U.K. If Appellant is right, the U.S. petition would not meet the “dual criminality” requirement of the Extradition Act 2003.

In a composite opinion, the Judicial Committee of the House of Lords reverses on count 1 and upholds counts 2‑4 and remands for further inquiry on the possible prejudicial impact of delay.

The House then laid out its rationale. “By the end of the 19th century, it was settled that between master and servant, principal and agent and the buyer and seller of a business, that covenants in restraint of trade were, in general, void and so unenforceable, unless their restrictions were reasonable in the interests both of the parties themselves and of the public. The House so ruled in Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co. Ltd. [1894] A.C. 535; and that ruling represents the law today.” [¶ 8].

“ ...The common law recognised that an agreement in restraint of trade might be unreasonable in the public interest. In such cases, the English courts would hold the agreement to be void and unenforceable. In the absence of aggravating features such as fraud, misrepresentation, violence, intimidation or inducement of a breach of contract, however, such agreements were neither actionable or indictable. The House affirmed the contemporary relevance of common law principles in British Airways Board v. Laker Airways Ltd. [1985] A.C. 58 , 79.” [¶ 18]

“The Clayton Act creates the civil remedy with treble damages for criminal offences under the Sherman Act; under English choice of law rules, it is purely territorial in its application. Moreover, [in Laker] the predominant purpose of the defendants’ allegedly unlawful actions was defending their own business interests. They had long been providing scheduled airline services on North Atlantic routes. Laker in turn was trying to lure customers away from them by operating its Skytrain policy. Under these circumstances, a now well‑established principle of English ... law would rule out any English cause of action for unlawful conspiracy.”

“Where the English courts have discerned aggravating elements, however, such as misrepresentation and deception, the English authorities have successfully prosecuted defendants for conspiracy to defraud.”

“The Respondent submits that Laker is not authority for the proposition that dishonest price‑fixing is lawful at common law. That is partly true. ... Laker is, however, clear authority that an anti‑competitive price‑fixing agreement of the kind alleged against BA and BCA would have given Laker no cause of action which it could have pursued in the English court.

“At no time up to the present has any U.K. authority successfully prosecuted anyone, whether an individual or a company, for being party in, or giving effect to, a price‑fixing agreement without aggravating features.” [¶¶ 22‑23].

The Committee next outlined the history of the English law’s treatment of anti‑competitive behavior and then continued. “In 1998, Parliament enacted the Competition Act 2000; it repealed the 1976 Act, and introduced a general ban on anti‑competitive activities derived from Articles 81 and 82 of the EC Treaty. It provides for substantial fines on cartel activity, but has a few exceptions, most of which the European Commission [had] allowed. The Act also grants the Office of Fair Trading (OFT) wide powers of investigation in Sections 25 to 29. ... Sections 42 to 44 do create criminal offences, but they all are based on failure to comply with most of the investigation procedures in Sections 25 to 29.”

“The Enterprise Act of 2002 first introduced the statutory criminalisation of cartels. While the [supporting] paper recommended that the law be changed in this and other respects, it stated in ¶ 6.1 that ‘[i]t should be noted that engaging in a cartel currently only constitutes a civil law infringement in the United Kingdom and only undertakings [not individuals] are subject to penalties’. “The [language] of the 2002 Act itself seems inconsistent with the notion that Parliament believed that there was a common law offence of price‑fixing.” [¶¶ 37‑38]

“The above analysis of the case law, the legislation, and ministerial and other official observations appears to establish, without more, that there has never been a common law offence of price‑fixing. In addition, the material also serves to demonstrate that it would be wrong in principle for any court now to hold that there is or was, at the time of the events complained of in count 1, such a common law offence.”

The House then applies the principle of certainty to this case. “In R v. Rimmington [2006] 1 A.C. 459, ¶ 33, Lord Bingham of Cornhill said that there were two ‘guiding principles’ relevant in that case, namely [that]: ‘no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done.”

“Lord Bingham also points out that those principles are ‘entirely consistent with Article 7(1) of the European Convention’. ... [H]e discussed a number of decisions of the Strasbourg Court on the topic, which established that, while ‘absolute certainty is unattainable, and might entail excessive rigidity’, and ‘some degree of vagueness is inevitable’ particularly in common law systems, ‘the law‑making function of the courts must remain within reasonable limits’.” [¶¶ 52‑53]

“Even if it had otherwise been open to the Divisional Court to decide that price‑fixing could now amount to a common law offence, these principles would have required a contrary conclusion. Considering the matter as at the 1990s, the period covered by count 1, the consistent message which had been conveyed both by Parliament, through legislation enacted between 1948 and 1976, and by the judiciary, through cases decided from 1875 through to 1984, was that price‑fixing was not of itself capable of constituting a crime. This message was reinforced by ministerial statements, even into this century, and in textbooks. There was no reported case, indeed, it would appear, no unreported case, no textbook, no article which suggested otherwise. Further, the legislation indicated that cartel operating was a matter for regulation, and the cases indicated that it did not even constitute a civil wrong.”

“In these circumstances, it would appear to involve a contravention of the principles articulated in Rimmington to hold that entering into, or operating, a price fixing agreement constituted, and had during most of the 20th century constituted, a common law offence.” [¶¶ 55‑56].

“For all the reasons given ... above, the Committee concludes that mere price‑fixing (that is, the making and implementation of a price‑fixing agreement without aggravating features) was not ( at any time relevant to count 1) a criminal offence in the United Kingdom. Appellant’s appeal in relation to this count must accordingly be allowed and the judge’s order quashed.”

The Committee then takes up the question of whether the traditional requirement of double criminality was met here. “As stated, Appellant’s appeal with regard to count one fails to be allowed on the elementary basis that the conduct of which he is accused – mere undeclared participation in a cartel – was not at the material time, in the absence of aggravating features, a criminal offence in this country either at common law or under statute. It was therefore wrong to have characterised his conduct as being party to a conspiracy to defraud although it would have been otherwise had the allegation been, for example, that he and his co‑conspirators, having entered into a price‑fixing agreement, agreed in addition to deceive their customers by making false representations to the contrary.”

“That certainly would have been an aggravating feature. But no such conduct is alleged here. It is true that Ms. McClain has deposed that the conspirators ‘[i]n effect ... defrauded their customers by requiring that they pay higher prices than they might otherwise have paid had there been no conspiracy.’ But that is no more than to assert an intrinsic unlawfulness and dishonesty merely in taking part in a secret cartel and under English law, until the enactment of Section 188 of the Enterprise Act 2002, that was simply not so.” [¶¶ 62‑63]

“Before turning ...to a brief history of English extradition law prior to the Extradition Act 2003 , particularly with regard to the so‑called Double Criminality rule, it is useful to stand back from the detail and recognise the essential choice that the legislature makes in deciding just what the double criminality principle requires. It is possible to define the crimes for which extradition is to be sought and ordered (extradition crimes) in terms either of conduct or of the elements of the foreign offence. That is the fundamental choice.”

“The court can be required to make the comparison and to look for the necessary correspondence either between the offence abroad (for which the accused’s extradition is sought) and an offence here, or between the conduct alleged against the accused abroad and an offence here. For convenience these may be called respectively the offence test and the conduct test. ... [I]f the offence test is adopted, the requested state will invariably have to examine the legal ingredients of the foreign offence to ensure that there is no mismatch between it and the supposedly corresponding domestic offence. If, however, the conduct test is adopted, it will be necessary to decide, as a subsidiary question, where, within the documents emanating from the requesting state, the description of the relevant conduct is to be found.” [¶ 65].

“Part 2 of the Extradition Act 2003 is concerned with ... with extradition to category 2 territories which include the U.S. A. For the purposes of Part 2 of the Act the term ‘extradition offence’ is defined by Section 137, which so far as material provides: ‘(1) This section applies in relation to conduct of a person if – (a) he is accused in a category 2 territory of the commission of an offence constituted by the conduct ... (2) the conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied – (a) the conduct occurs in the category 2 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or [more] ... (c) the conduct is so punishable under the law of the category 2 territory ...’”

“It is Appellant’s central contention that, in enacting Section 137, Parliament deliberately eschewed the approach adopted in the 1989 Act and instead chose language mirroring the 1967 Act. The 1967 Act spoke of ‘the act or omission constituting the offence’, the 2003 Act of ‘an offence constituted by the conduct’. Both Acts, he submits, focus on that part of the conduct which constitutes the foreign offence, not the other parts which are extraneous to it but which may be alleged in documents supporting the extradition request: the court can have regard only to such conduct as would prove the essential ingredients of the foreign offence, nothing more. In short, Appellant contends for the offence test, not the conduct test.” [¶¶ 75‑76].

“The language of Section 137 is, in our opinion, consistent with either [the “offense” test or the “conduct”] test. Whether the conduct consists solely of those acts or omissions necessary to establish the foreign offence, or the accused’s conduct as it may have been more widely described in the request, both the foreign offence and the corresponding English offence would still be ‘constituted’ by it ....”

“... [R]eally nothing ‘startling’ follows from adopting the wider construction. On the contrary, it accords entirely with the underlying rationale of the double criminality rule: that a person’s liberty is not to be restricted as a consequence of offences not recognised as criminal by the requested state. ...”

“The wider construction furthermore avoids the need always to investigate the legal ingredients of the foreign offence, a problem long since identified as complicating and delaying the extradition process. ... [T]o require evidence of foreign law beyond the documents now supplied with the requisition could cripple the operation of the extradition proceedings .... Flying witnesses in to engage in abstruse debates about legal issues arising in a legal system with which the judge is unfamiliar is a certain recipe for delay and confusion to no useful purpose, particularly if one contemplates the joys of translation and the entirely different structure of foreign systems of law.”

“In addition, the wider construction would place the U.K.’s extradition law on the same footing as the law in most of the rest of the common law world. The broad conduct approach – the examination of all the conduct on which the requesting state relies – is that almost universally followed.

“The Committee has reached the conclusion that the wider construction should prevail. In short, the conduct test should be applied consistently throughout the 2003 Act. [T]he conduct relevant under Part 2 of the Act [is] that described in the documents constituting the request. ... [Taking] account of such allegations as are relevant to the description of the corresponding U.K. offence.”

“Counts 2 to 4 on the indictment allege various forms of obstruction of justice, all relating to the criminal investigation into price fixing in the carbon products industry which was being conducted by the grand jury in the Eastern District of Pennsylvania. [¶¶ 88‑92]

On behalf of Appellant, [counsel] contended that, in terms of Section 137(2)(b) of the 2003 Act, these are not extradition offences since the conduct would not have constituted an offence under English law if it had occurred in England. In other words, it would not have been an offence under English law for Appellant to conspire in England to obstruct the criminal investigation into price fixing being carried out by the grand jury in Pennsylvania.”

“An exercise in transposition has been an essential part of the law since the enactment of section 10 of the Extradition Act 1870 ... It is the means by which Parliament gives effect to a policy that, before there can be extradition, there should have been criminality according to both the law of the requesting state and English law.” [¶ 94].

“If, then, we ignore the adventitious circumstances connected with the conduct alleged against Appellant in counts 2 to 4 of the indictment and concentrate instead on the essence of his alleged acts, the substance of the criminality charged against him is not that he obstructed the criminal investigation into price fixing in the carbon products industry being carried out by the Pennsylvania grand jury, but that he obstructed the criminal investigation into that matter being carried out by the duly appointed [English] body. Making the necessary changes, we would have to translate counts 2 to 4 into counts of obstructing in England a criminal investigation into price‑fixing in the carbon products industry being conducted by the appropriate investigatory body in this country.”

“So the mere fact that the result of the investigation in Appellant’s case was a charge of simple price fixing, which does not constitute an offence under English law, is no reason to hold that it would not have been an offence under English law to obstruct the progress of an equivalent investigation by the appropriate body in this country.”

“Approaching the matter in that way, we are satisfied that, if Appellant had done in England what he is alleged to have done in counts 2 to 4, with the intention of obstructing an investigation being carried out into possible criminal conduct, in regard to fixing prices in the carbon products industry, by the duly appointed body in the United Kingdom, he would indeed have been guilty of offences of conspiring to obstruct justice or of obstructing justice, which could have attracted a sentence of twelve months’ imprisonment. It follows that offences 2 to 4 on the indictment are ‘extradition offences’ in terms of Section 137(2)(b) of the 2003 Act.” [¶ 101]

The Committee then turns to the question whether the lapse of time in this case was prejudicial. “Counts 2 to 4 relate to alleged events between April 1999 and August 2001. On December 31, 2004 the warrant for Appellant’s arrest was issued in England at the request of the U.S. Government and the contested hearing before the district judge took place in May 2005.”

“Section 82 of the 2003 Act (at the relevant time ...) provided: ‘A person’s extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be).” [¶¶ 102‑103].

“The period between the alleged conduct in counts 2 to 4 and the arrest of Appellant is not strikingly long. Indeed, in our view, it is not such as to make it prima facie likely that significant relevant witnesses or documents might no longer be available.” [¶¶ 106‑107].

“... [B]y itself, the relevant period of time in this case does not justify an inference that Appellant would not be able to have a fair trial. ... But the counts in the indictment contain an indication of the type of conduct alleged against him, and of the places where, and the dates when, it is said to have taken place. Armed with that information, he must know who were his colleagues and opposite numbers at the relevant time and is in a position to instruct his lawyers and others to look into the matter.”

Section 87(1) of the 2003 [Extradition] Act requires the extradition judge to decide whether a person’s extradition would be incompatible with his Convention rights scheduled to the Human Rights Act 1998. This calls for a judgment on the proportionality of an order of extradition in all the circumstances, having regard to the defendant’s rights under article 8 and any other relevant article.”

“In the present case the district judge considered that question and resolved it adversely to Appellant. But he exercised his judgment on a basis different from that which now pertains, namely that Appellant was to be extradited on the main price‑fixing count, and not merely the subsidiary counts.”

“In relation to counts 2‑4, the House will remit the matter to a district judge to decide the question [of proportionality and the impact of delay raised by Section 87(1) of the Act.] Depending on his answer, he will act in accordance with either subsection (2) or subsection (3) of that section.” [¶¶ 109‑111].

Citation: Norris v. Government of the United States of America, [2008] U.K. H. L. 16; 2008 WL 576924 (HL); [2008] 2 W.L. R. 673 (House of Lords, March 12, 2008).

FORUM NON CONVENIENS

In matter of first impression, Rhode Island Supreme Court formally recognizes forum non conveniens doctrine and rules that its state courts are not proper courts to decide this asbestos case filed by Canadian plaintiffs

Thirty‑nine Canadians (Plaintiffs) filed lawsuits in the Rhode Island courts against various companies (Defendants) that do business there (including General Electric Company), alleging their injurious Canadian workplace exposure to asbestos‑containing products. The Defendants moved to dismiss all cases. In May 2005, the Superior Court denied the motions to dismiss. The Judge noted that Rhode Island had not yet recognized the forum non conveniens (FNC) principle (except in child custody matters).

The Defendants successfully petitioned the Rhode Island Supreme Court (RISC) to review the denial of their motions to dismiss the 39 cases. They raised two issues. The first was whether Rhode Island should expressly recognize FNC and set a standard for the same. Secondly, assuming FNC does apply, whether the Superior Court had erroneously “exercised jurisdiction” over the 39 Canadian Defendants.

In a matter of local first impression, the RISC now joins 46 states and the federal courts by formally recognizing the FNC doctrine. The Court first recaps the fundamentals of the doctrine. In general, it says that a court may decline to exercise subject matter jurisdiction when the Plaintiff’s chosen forum is significantly inconvenient for Defendants and where litigation in a more convenient forum would better serve the ends of justice.

“Under the [FNC] doctrine ‘when an alternative forum has jurisdiction to hear [a] case, and when trial in the chosen forum would ‘establish ... oppressiveness and vexation to a Defendant ... out of all proportion to Plaintiff’s convenience,’ or when the ‘chosen forum [is] inappropriate because of considerations affecting the court’s own administrative and legal problems,’ the court may, in the exercise of its sound discretion, dismiss the case on FNC grounds ‘even if jurisdiction and proper venue are established.’ American Dredging Co. v. Miller, 510 U.S. 443, 447‑48 (1994) (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981)).” [Slip op. 12‑13].

“Before embarking on an FNC inquiry, a court must determine the existence of proper jurisdiction and venue. See [Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504 (1947)]. A court should never apply [FNC] once it determines that jurisdiction is lacking. Sinochem International Co. Ltd. v. Malaysia International Shipping Corp., 127 S. Ct. 1184, 1193 (2007).”

“Nevertheless, a court may ‘dispose of an action by an [FNC] dismissal, bypassing questions of subject‑matter and personal jurisdiction, when considerations of convenience, fairness, and judicial economy so warrant.’ ... Such a scenario occurs, for example, when discovery concerning personal jurisdiction would burden a defendant with expense and delay for ‘scant purpose’ because a court would inevitably dismiss on the basis of [FNC] ... However, in most cases, when a court can ‘readily determine that it lacks jurisdiction over the cause or the defendant, the proper course would be to dismiss on that ground.’”

“The [FNC] inquiry consists of a two‑prong analysis. First, the court must decide whether an alternative forum exists that is both available and adequate to resolve the disputed legal issues. Piper Aircraft Co., supra, at 255 n.22. Second, the court must determine the inconvenience of continuing in the Plaintiff’s chosen forum by weighing private‑ and public‑interest factors. Id. at 255 ... ‘A defendant invoking [FNC] ordinarily bears a heavy burden in opposing the plaintiff’s chosen forum.’ Sinochem, supra, at 1191. It is well settled that the Defendant carries the burden of persuasion at each stage of the [FNC] inquiry. Lacey v. Cessna Aircraft Co., 862 F.2d 38, 43‑44 (3d Cir. 1988).” [Slip op. 13‑14].

“If the alternative forum is not available, a court cannot dismiss on [FNC] [unless] Defendant is ‘amenable to process’ in the other jurisdiction.” Piper Aircraft Co., supra at 255 n. 22 ... To guarantee availability, a court can condition [an FNC] dismissal on the defendant’s consent to submit to jurisdiction in the alternative forum.”“Even where the alternative forum is available, a court cannot dismiss on [FNC] grounds if the alternative forum is inadequate. In performing the adequacy calculus, ‘[t]he possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight,’ Piper Aircraft Co., supra, at 247, ... However, ‘if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight ...’”

“‘[T]he bar for establishing that the alternative forum is adequate historically has been quite low. Thus, according to a number of decisions, the alternative forum is adequate as long as the plaintiff will not be deprived of all remedies or subjected to unfair treatment. A mere decrease in the amount potentially recoverable or the loss of the availability of contingent fee arrangements, the absence of the right to a jury trial, or the loss of various other procedural advantages such as the alternative forum’s restrictions on the scope or nature of discovery and the lack of a class action or other aggregation procedures normally will not prevent dismissal. Likewise, general accusations of corruption, delay, or other problems with the alternative forum’s judicial system normally will not suffice ....’ 14D Charles Alan Wright et al., Federal Practice & Procedure Section 3828.3 at 677‑82 (3d ed. 2007).” [Slip op. 14‑15]

“The second prong of the [FNC] inquiry focuses on the inconvenience of continuing in the chosen forum by weighing private‑ and public‑interest factors. It is not possible to catalogue all the circumstances that may or may not lead to a [FNC] dismissal. Gulf Oil Corp., supra at 508. Because the doctrine requires flexibility, central emphasis should not be placed on any one private‑ or public‑interest factor. Piper Aircraft Co., supra at 249‑50.”

‘The private interests of the litigants include the following factors:’ ‘Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; the possibility of a view of premises, if such a view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.’ Gulf Oil Corp., supra at 508.”

“Other factors that may be relevant to the private‑interest assessment include the enforceability of a judgment in the alternative forum, and the advantages and obstacles to a fair trial. Gulf Oil Corp., supra, at 508. Also, a ‘plaintiff may not, by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy.’ Id. The private interest of a plaintiff should be afforded more weight when the forum choice appears to be based on legally valid reasons such as convenience and expense.” [Slip op. 15‑16]

The U.S. Supreme Court also has identified several public‑interest factors: “Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. ...” [Slip op. 16‑17]

The Court then decides that the circumstances of the 39 cases require the application of the FNC doctrine here. The private and public interest factors support a Canadian forum: As for the private factors, none of the Plaintiffs or Defendants are Rhode Island residents. Much of the evidence is in Canada or other U.S. states. Most of the relevant events took place in Canada. The local court might have to subpoena unwilling Canadian witnesses with the procedural help of a Canadian court.

As for the public factors, a Rhode Island jury would have to hear a complicated case that has no meaningful connection with the state. Canadian law would likely apply and further burden the court. Here, the Court is unable to discern any significant nexus with Rhode Island interests.

The Court remands with instructions to dismiss the 39 cases under the FNC doctrine upon the condition that the Defendants waive any statute of limitations defense that might be available to them in the alternative forum.

Citation: Kedy v. A. W. Chesterton Co., 2008 WL 1990252; Nos. 2005‑332‑M.P. & 2005‑319‑M.P. (RI May 9, 2008).

JURISDICTION (CRIMINAL)

Ninth Circuit decides that U.S. has criminal jurisdiction over foreign national who, in act of piracy, seized control of foreign vessel on high seas but was intercepted by U.S. authorities (1) under international law principle of universal jurisdiction over piracy not requiring nexus between offender and U.S. and (2) under federal law granting jurisdiction if individual later ends up in U.S.

The Captain and First Mate of the Full Means No. 2, a Taiwanese vessel, had long been harassing and abusing Lei Shi (Defendant), the cook. One day, Defendant had had enough and murdered both harassers. Defendant then took control of the vessel and ordered the Second Mate to take it to China. After two days, the crew overpowered Defendant and locked him in a storage compartment. Not having heard from his vessel in several days, the owner asked the U.S. Coast Guard for help.

A Coast Guard cutter soon intercepted the vessel about 60 miles off Hilo, Hawaii. John Fu, a Chinese‑speaking officer boarded the vessel and came upon Defendant inside the compartment. Before receiving any Miranda warnings, Defendant admitted that he had killed the Captain and the First Mate. Eventually, FBI agents boarded the vessel and arrested Defendant for violating 18 U.S.C. Section 2280; it criminalizes acts of violence that endanger maritime navigation.

The statute codifies the U.S.’s obligations under the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 27 I. L. M. 672 (1988) [in force for U.S. March 6, 1995]. The Convention authorizes any signatory state to extradite or prosecute offenders, regardless of where the acts took place . Section 2280 also provides for federal jurisdiction over any offender who is later found in the U.S.

The agents also uncovered several incriminating letters that Defendant had written. During later questioning in Hawaii, Defendant again confessed to the murders. The government charged Defendant with violating Section 2280. The district court concluded that it had jurisdiction over Defendant. A jury found him guilty, and he appealed. The U.S. Court of Appeals for the Ninth Circuit upholds federal jurisdiction here and affirms the conviction.

“At issue here is the provision of Section 2280 which renders jurisdiction proper if the ‘offender is later found in the United States.’ Id. Section 2280(b)(1)(c). The district court concluded that Section 2280 provided it with jurisdiction over Defendant because Defendant’s arrest and transport to Honolulu rendered him ‘later found’ in the United States as the statute defines that term.”

“Article I, Section 8, Clause 10 of the U.S. Constitution ... empowers Congress to ‘define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.’ Because the high seas, by definition, lie outside U.S. territory, ..., the ... Clause grants Congress the authority to apply federal law beyond the borders of the United States, EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991).”

“Section 2280 is an exercise of Congress’s constitutional authority to define and punish ‘Felonies on the high Seas’ because it proscribes felony offenses and expressly applies to international waters. ... In addition, Sections 2280(a)(1)(A) and (B), the provisions under which Defendant was charged, proscribe offenses that meet the definition of piracy. ‘Piracy’ traditionally has been defined as ‘robbery, or forcible depredations upon the sea.’ United States v. Smith, 18 U.S. 153, 161 (1820). ...” “Section 2280(a)(1)(A) prohibits ‘seiz[ing] or exercis[ing] control over a ship by force or threat thereof,’ and Section 2280(a)(1)(B) prohibits ‘act[s] of violence against a person on board a ship’ that are ‘likely to endanger the safe navigation of that ship.’ Because such offenses involve interference with property on the open sea through the use of force, they are within Congress’s power to define and to punish crimes of piracy. ...”

“In addition to the Offense Clause, Congress derived the authority to promulgate Section 2280 by virtue of the Necessary and Proper Clause. That Clause empowers Congress ‘to make all Laws which shall be necessary and proper for carrying into execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.’ U.S. Const. art. I, Section 8, cl. 18. Such ‘Powers’ include the Executive’s Article II Treaty Power.” [Slip op. 7‑8]

The Court then addresses whether Congress really intended the law to apply extraterritorially. See Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188 (1993). Here, Section 2280(b)(1) purports to apply to “covered ships;” it defines them as ships “navigating or . . . scheduled to navigate into, through or from waters beyond the outer limit of the territorial sea of a single country,” 18 U.S.C. Section 2280(e). Furthermore, the law extends federal criminal jurisdiction over acts committed on such ships if “the offender is later found in the United States.” Id. Section 2280(b)(1)(c).

Defendant further claims that applying Section 2280 to his case violates the Due Process Clause of the Fifth Amendment. In United States v. Davis, 905 F.2d 245, 248 (9th Cir. 1990), the Ninth Circuit held that, when a U.S. court applies the Maritime Drug Law Enforcement Act (MDLEA) to a foreign defendant on a foreign ship, due process requires “a sufficient nexus between the defendant and the U.S., so that such application would not be arbitrary or fundamentally unfair.” Davis, supra, at 249‑50. The Defendant here, however, fails to persuade the Court that the law demands such a nexus in this case.

In United States v. Caicedo, 47 F.3d 370 (9th Cir. 1995), however, the Court noted that “[a] nexus requirement, imposed as a matter of due process, makes sense when the ‘rough guide’ of international law also requires a nexus.’ Id. at 372. Here, the international law principle of Universal Jurisdiction allows the state in which the offender turns up to punish for offenses against all states. This is true even if the offensive acts took place elsewhere and even if the offender has no link to the forum state other than physical presence there.

Here, Defendant committed acts that constituted piracy. Thus, due process does not require the same nexus between the offender and the U.S. as the MDLEA does. Further, Section 2280 also implements the Maritime Safety Convention, above; it expressly provides for the prosecution of foreign offenders.

Finally, Defendant argued that jurisdiction was improper because the U.S. agents had taken him to the U.S. against his will. The appellate court is not persuaded. The D.C. Circuit held in United States v. Rezaq, 134 F. 3d 1121 (D.C. Cir. 1998), that the requirement of the anti‑hijacking statute that the government “afterwards found” defendant in the U.S. simply means that the highjacker is physically located in the U.S. The Ninth Circuit follows this interpretation in the present case as applied to Section 2280.

This also harmonizes with the Ker‑Frisbie rule: “It is well‑established that jurisdiction over a defendant is not impaired by the fact that he was brought within the jurisdictional territory of the court against his will. See Frisbie v. Collins, 342 U.S. 519, 522 (1952); Ker v. Illinois, 119 U.S. 436 (1886).” [Slip op. 14].

Citation: United States v. Shi, 2008 WL 1821373; No. 06‑10389 (9th Cir. April 24, 2008).

JURISDICTION (PERSONAL)

Fifth Circuit affirms dismissal of lawsuit by Panamanian cancer patients injured by faulty radiation treatment in Panama because Texas federal court lacked personal jurisdiction over Missouri and Canadian defendants involved in manufacture of allegedly defective radiation equipment

Most of the Plaintiffs are Panamanian cancer patients who sought treatment at the Instituto Oncologico Nacional (ION) in Panama City, Panama in 2000. This is the third lawsuit they have brought in the U.S. See also 2005 International Law Update 68. The ION treated the Plaintiffs using a Theratron 780C Teletherapy Unit (TU ) in conjunction with a Treatment Planning System (TPS). The TU is a radiation device for treating cancer patients, and the TPS is a computer software system used to calculate appropriate dosages. Due to the alleged negligence of ION physicians, they had applied incorrect calculations in treating Plaintiffs; these errors caused many serious injuries and several deaths from radiation over‑exposure.

When the Panamanian government found out about the incidents, it asked the International Atomic Energy Agency (IAEA) to investigate along with a group of doctors from the MDA Cancer Center in Houston, Texas. Their reports attributed the injuries and deaths to misuse of the TPS. As a result, the Panamanian authorities stripped a number of physicians of their Panamanian medical licenses and convicted two of negligent homicide.

In 2001, Plaintiffs sued Defendants for wrongful death and negligence in a Missouri state Court. Multidata (Def. 1) of Missouri manufactured the TPS, while MDS (Def. 2) , which made the Theratron Unit, is a Canadian Corporation. Defendants moved to dismiss for forum non conveniens, arguing that because the Plaintiffs and evidence are located in Panama that is the appropriate forum. Plaintiffs countered that Panama was not in fact an available alternative forum; the Panamanian court system is allegedly corrupt and would not accept a suit which a foreign court had dismissed.

Before the Missouri trial court reached a decision, however, one Plaintiff filed a petition in a Panamanian court against Defendants, which court dismissed the case for want of jurisdiction. On January 8, 2004, the Missouri court dismissed the action without prejudice on forum non conveniens grounds. The court ruled that Plaintiffs could re‑file in Missouri if Panama declined jurisdiction upon a re‑filing. Plaintiffs appealed, and the higher court affirmed. When the Panamanian appeals court likewise affirmed its prior dismissal, Plaintiffs filed four new suits in Missouri. The state court dismissed once again.

Instead of refiling in Panama, Plaintiffs sued in Texas federal court under claims similar to those made to the previous Missouri suits. Defendants moved to dismiss on two relevant grounds: (1) that the court lacked personal jurisdiction over Defendants, and (2) that Texas was forum non conveniens. In response, Plaintiffs argued: (1) that the Texas court could exercise general jurisdiction over Defendants; and (3) that Panama was not an available alternative forum for Plaintiffs.

The district court denied the motion to dismiss and this interlocutory appeal ensued. The U.S. Court of Appeals for the Fifth Circuit reverses for a dismissal based on lack of personal jurisdiction over the Defendants.

The Texas long arm statute extends to the limits of U.S. constitutional jurisdiction over nonresidents under the Fourteenth Amendment’s Due Process Clause. This required Plaintiffs to prove: (1) that the non‑resident defendant(s) purposely availed himself of the benefits and protections of Texas by establishing “minimum contacts” with the state; and (2) that the exercise of jurisdiction would not offend “traditional notions of fair play and substantial justice.”

“Plaintiffs put forward three bases for jurisdiction over Def. 1. First, over a period of five years, Def. 1 sold about $140,000 worth of goods and related service contracts to ten different customers located in Texas. Those sales represented roughly 3% of Def. 1’s business during that time span, and led to periodic trips to Texas by Def. 1 employees to service the equipment. Second, Def. 1 had been advertising in national trade journals that circulated in Texas. Third, Def. 1 employees periodically attended trade conventions in Texas.”

In response, Def. 1 stressed that it neither maintains a place of business in Texas nor has a registered agent for service of process in Texas. It argues that the contacts identified by Plaintiffs are too limited and sporadic to give rise to general personal jurisdiction. We agree.” [Slip. Op. 10].

“Similarly, MDS’s contacts with Texas are lacking the substance or regularity necessary to establish general jurisdiction. Plaintiffs identify four different contacts that MDS has with Texas: (1) it purchased over $5.2 million worth of goods from Texas vendors during the five year period prior to the lawsuit; (2) it is party to a Hosting Services Agreement and a Software Licensing Agreement with a Texas corporation governed by Texas law; (3) it employs two Texas residents who perform work from their homes; and (4) a former corporate director lived in Texas.”

“In response, MDS notes that it: (1) has not manufactured or sold any products in Texas; (2) owns no real property in Texas; (3) does not have a registered agent for service of process in Texas; and (4) does not maintain any offices in Texas. Moreover, it argues that the contacts identified by Plaintiffs are insufficient to establish a systematic and continuous contact with Texas. Once again, we agree.” [Slip. Op. 10].

The Court points out that MDS’ status as a foreign defendant implicated other jurisdictional concerns. “In the instant case, we find that exercising jurisdiction over MDS Canada would offend traditional notions of fair play and substantial justice. First, like the defendant in [Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987)], a severe burden would be placed on MDS Canada if it is forced to defend itself in Texas.”

“In addition to the regular burdens of defending oneself in a foreign legal system, MDS Canada would not have compulsory access to many of the necessary witnesses and evidence.. Second, the ‘the procedural and substantive policies’ of two other nations ‑‑ Canada and Panama ‑‑ would be affected by the assertion of jurisdiction over MDS Canada. Third, the judicial system’s interest in an efficient resolution of the case favors litigating the case in Panama because MDS Canada has a potential third party claim for indemnification against the [Panamanian] doctors and physicists.” [Slip. Op. 16‑17].

“We do not believe that MDS Canada has sufficient substantial, continuous, and systematic contacts with Texas to justify the exertion of general jurisdiction. MDS Canada does not maintain any office or other permanent presence in Texas. And the volume of MDS Canada’s business in Texas is not so substantial that it should have reasonably expected to be haled into Texas court on any matter whatsoever.”

“But even if MDS Canada’s contacts were sufficient, it would offend traditional notions of fair play and substantial justice to exercise jurisdiction over MDS Canada in this case. In light of the international context of the case, [and] the slight interests of both Plaintiffs and Texas, it is unreasonable to impose the heavy burden of defending this case in Texas on MDS Canada.” [Slip. Op. 17‑18].

Citation: Johnston v. Multidata Systems International Corp., 523 F.3d 602 (5th Cir. 2008).

REAL PROPERTY, TAKINGS OF

In case filed by Uzbekistan citizen for just compensation under Fifth Amendment’s Taking Clause arising out of destruction of her cafeteria next to U.S. Embassy in Uzbekistan, Federal Circuit holds that, where foreign Plaintiff lacks sufficient connection to U.S. she has no right to compensation

Zoya Atamirzayeva (Plaintiff) alleges that, in response to a request by the U.S. Embassy, the local government evicted her from her property next to the U.S. Embassy in Uzbekistan. The Embassy had raised security concerns with the local authorities who then destroyed her property. While the Plaintiff owned the buildings that included her cafeteria, however, the Republic of Uzbekistan owned the land on which they sat.

Plaintiff, a citizen of Uzbekistan, sued the United States (Defendant) in the U.S. Court of Federal Claims. Plaintiff alleges that she is entitled to just compensation under the Fifth Amendment to the U.S. Constitution for the alleged taking of property she owned in Uzbekistan. The Court of Federal Claims dismissed Plaintiff’s claim; it held that Plaintiff had no claim under the Fifth Amendment because she is a foreign national and the situs of her property was in a foreign country. Moreover, she had failed to plead that she had a connection to the U.S.

This appeal followed. The sole question is whether a foreign citizen with no connections to U.S. has a right to just compensation for a taking of property that occurred in a foreign country. The U.S. Court of Appeals for the Federal Circuit affirms.

The Court then explains its reasoning. “The Supreme Court has long taken the view that the Constitution is subject to territorial limitations. [...] By the constitution a government is ordained and established ’for the United States of America,’ and not for countries outside their limits¼Cook v. U.S., 138 U.S. 157, 181 (1891). The constitution can have no operation in another country.” [Slip op. 3].

“[In] Reid v. Covert, 354 U.S. 1 (1957), a plurality of the Court adopted a more expansive view of the extraterritorial application of constitutional protections¼the Court¼held that, as U.S. civilians being tried for capital offenses, the two women were constitutionally entitled to civilian trials.” [Slip op. 5].

“The plurality did not, however, adopt an unlimited view of the extraterritorial scope of the constitutional provisions at issue in that case. Instead, it relied on the U.S. citizenship of the habeas corpus Defendants in Reid” [Slip op. 6].

“[Plaintiff] urges that we interpret [Reid] to mean that federal officials are constrained by the Fourth Amendment wherever and against whomever they act. But the holding of Reid stands for no such sweeping proposition: it decided that U.S. citizens stationed abroad could invoke the protections of the Fifth and Sixth Amendments...Since respondent is not a U.S. citizen, he can derive no comfort from the Reid holding.”

“[T]he trial court relied on the ‘substantial connection test’ derived from United States v. Verdugo‑Urquidez, 494 U.S. 259 (1990), and held that [Plaintiff] did not have a right to relief under the Fifth Amendment because she did not plead any connection to the United States.” [Slip op. 10]

The Plaintiff relied on the decision in Turney v. United States, 126 Ct. Cl. 202, 115 F. Supp. 457 (1953), which rejected the claim that the Fifth Amendment does not apply extraterritorially. “While Turney is binding on us, we do not believe that it is dispositive of [Plaintiff]’s claim. The¼claimant in Turney had three significant connections to the United States.” [Slip op. 12‑13].

“[Plaintiff] argues that, under the approach advocated by Justice Kennedy in Verdugo‑Urquidez and Justice Harlan in Reid, there is no reason to restrict the right to just compensation under the Fifth Amendment to those who have some connection to the United States.”

“Those concurring opinions, however, do not provide the support that [Plaintiff] seeks to derive from them. Justice Kennedy emphasized in Verdugo‑Urquidez the importance of the distinction between constitutional claims raised by citizens and those raised by ‘non‑citizens who are beyond our territory.’ And Justice Harlan’s opinion in Reid suggested that even civilian dependents of servicemen overseas might not be entitled to full Article III trials for non‑capital offenses. Even the broad plurality opinion in Reid does not support Ms. Atamirzayeva’s reading of Turney. Although the plurality in Reid cited Turney as a case in which a court applied a constitutional provision extraterritorially, it did so in the context of its discussion of constitutional rights that ‘protect Americans abroad.’” [Slip op. 15].

Citation: Atamirzayeva v. United States, 524 F.3d 1320 (Fed. Cir. 2008).

U. N. Security Council passes additional Resolution 1803 on suspect Iranian nuclear activities. At meeting No. 5848,the U.N. Security Council issued its fourth resolution (SCR) against Iran in two years (see also SCRs 1696, 1737, 1747) on March 3, 2008. In SCR 1803, the Council reaffirms its commitment to the Treaty on the Non‑Proliferation of Nuclear Weapons [21 U.S.T. 483; T.I.A.S. 6839; 729 U.N.T.S. 161; in force March 5, 1970] (NPT) and the need for all states parties to the NPT to comply with their treaty obligations pursuant to Articles 1 and II to perform research and use of nuclear energy for peaceful purposes. It notes with concern the reports of the International Atomic Energy Agency (IAEA) that Iran has failed to suspend its uranium enrichment and heavy water processing activities as previous SCRs required it to do. Furthermore, Iran has not resumed cooperation with the IAEA under the Additional Protocol. It emphasizes that China, France, Germany, the Russian Federation, and the U.S. are willing to explore an overarching strategy with Iran to address its nuclear issues based upon their June 2006 proposals. Acting pursuant to UNC Article 41, Chapter VII, it requires Iran to take steps to ensure confidence in the peaceful nature of its nuclear program and to comply with SCR 1737. It imposes a travel ban on specific individuals whom the UNSC has identified as being associated with, or supporting, Iran’s proliferation sensitive activities, and authorizes states to perform inspections of Iran Air Cargo and Iran Shipping Line if there are reasonable grounds to believe that they are carrying prohibited goods. It calls upon all states to prevent Iran from obtaining goods used for prohibited activities, and for them to avoid financial transactions with Bank Melli and Bank Saderat that might help to promote proliferation sensitive nuclear activities.

Citation: United Nations Security Council Resolution 1803 Non‑proliferation (March 3, 2008).

Highest French court has retained temporary ban on local sale of Monsanto’s gene‑altered corn pending further investigation. On March 19, the Conseil d’Etat, France’s highest administrative court, upheld a temporary ban on MON810, a genetically altered corn variety produced by the American seed company Monsanto until it could rule on the validity of its scientific foundations. The Tribunal plans to hold hearings on the subject in coming months. In his ruling, Judge Jean‑Marie Delarue pointed out that, in January 2008, a committee of French specialists had called for more studies on the product’s safety. The ruling pleased those environmentalists and farmers who oppose gene‑modification technology. They had warned that the corn, which resists pests, could pollute other crops and pose a threat to the environment and human health. Backed by the biotechnology industry, other farmers contended the products could help lower costs and reduce the need for harmful pesticides. Europabio, an industry association in Brussels, predicted that at least seven EU Member States will allow the cultivation of MON810 this year including Spain and Germany. But Austria, France, and other EU governments have been very cautious about reducing their opposition to genetic modification. Apparently many EU citizens consider gene‑altered products to be suspect “Frankenstein” foods. For over ten years, U.S. farmers have been planting MON810 under the brand name “YieldGard.” Citation: The New York Times (online), Paris, Thursday, March 20, 2008 (byline of James Kanter).